EMAD IBRAHIM AL OMANI, LINA HOUSNE HAMZA NAHAS, v. SULTAN EMAD AL OMANI (A MINOR), LULWA, 2017 FC 786

Date: 20170824 Docket: T-1774-15 Citation: 2017 FC 786 Ottawa, Ontario, August 24, 2017 PRESENT: The Honourable Mr. Justice Roy BETWEEN: EMAD IBRAHIM AL OMANI, LINA HOUSNE HAMZA NAHAS, AND SULTAN EMAD AL OMANI (A MINOR), LULWA EMAD IBRAHIM AL OMANI (A MINOR), HAYA EMAD IBRAHIM AL OMANI (A MINOR), BY THEIR LITIGATION GUARDIANS, EMAD IBRAHIM AL OMANI AND LINA HOUSNE HAMZA NAHAS Plaintiffs and HER MAJESTY THE QUEEN Defendant ORDER AND REASONS [ 1 ] The Plaintiffs form a family from Saudi Arabia who applied for permanent residence in Canada under the Federal Skilled Worker Class.

They submitted a statement of claim alleging a number of causes of action resulting in various heads of damages against the Defendant due to their treatment in the immigration system. They also seek, or give notice of intent to seek, declarations that certain provisions in the Federal Courts Act , RSC, 1985, c F-7 [ Federal Courts Act ] and the Immigration and Refugee Protection Act , SC 2001, c 27 [IRPA] are unconstitutional. The Defendant moved to strike the statement of claim in its entirety.

The Court must determine whether the Defendant has established that the statement of claim fails to meet the pleadings requirements set out in the Federal Courts Rules , SOR 98-106 [the Rules]. At the Plaintiffs’ request, the Court must also determine whether to grant leave to amend any claims that are struck. I. Facts as set out in the statement of claim [ 2 ] The principal Plaintiff, Emad Al Omani, first submitted an application for permanent residence in Canada under the Federal Skilled Worker Class pursuant to subsection 12(2) of the IRPA in September 2006.

That application included his wife, Lina Housne Hamza Nahas, and their two children, Lulwa Ehmad Alomani and Sultan Emad Alomani, as accompanying dependents. Their third child, Haya Emad Ibrahim Al Omani, was later added to the application. [ 3 ] The Canadian High Commission in London dealt with the application and refused it in December 2009 because it fell two points short of the score of 67 needed for a positive decision.

The Plaintiffs mainly contest the visa officer’s award of 4/10 points for “adaptability” and 10/16 points for English proficiency, both of which are made by applying subsection 76(1) and related provisions of the Immigration and Refugee Protection Regulations , SOR/2002-227 [IRPR]. The principal Plaintiff maintains he should have received 5 adaptability points for his Canadian brother plus at least 3 adaptability points for his wife’s university degree.

On language proficiency, he argues the visa officer should have considered other evidence of his English language abilities: A/ with respect to adaptability, the Regulations and CIC’s own website, sets out that the Plaintiff, Emad Al Omani, should have obtained, under “adaptability”, 5 points, because he has a “sibling” (brother) who is a Canadian citizen and another 3 points because his spouse has a University degree, for a minimum of 8 out of 10 points for “adaptability”, and these 8 out of 10 points, which are statutorily predetermined, are before even considering the other factors of adaptability, such as the fact that both the Plaintiff and his wife have university degrees from English instruction universities, have a net worth of $2.3 million (CDN), of which half is in liquid assets, have family in Canada, have a job offer in Canada, from the company run and owned by the Plaintiff’s brother; B/ with respect to language (English) proficiency, the Plaintiff, Emad Al Omani, only received 10 out of 16 points, notwithstanding that the Regulations , and CIC’s representations, indicate that the prescribed English exam is not the only means by which to access English proficiency, and notwithstanding that the Applicant raised the issue of the need to write the exam, when he in fact graduated from an English-speaking University, has worked for English-speaking companies, in the English language, and was in the third year of a four year MBA programme, in English, which he had not yet completed due to work demands, and that the officer was in possession of confirmation of all of the above, and refused to exercise jurisdiction to assess his English proficiency, in the circumstances, within the context of his “ability to become economically established in Canada” (at para 20(b)(ii) of the statement of claim). [ 4 ] The decision was challenged in the Federal Court.

In August 2010, the decision was set aside by the Federal Court and the matter was sent back for redetermination by a different visa officer. [ 5 ] As part of the process of redetermination, the principal Plaintiff submitted further documentation requested by the Defendant and was called for an interview in January 2014. It is asserted that the interview lasted some 15 minutes. The officer asked the principal Plaintiff to explain a change in his job description.

Towards the end of the interview, the officer would have asked the principal Plaintiff suddenly whether he “belonged to, or was in any way associated with “any group or organization like Al Qaeda in Iraq” ” . The principal Plaintiff categorically replied, according to the statement of claim, that he did not belong to, nor associated with, such groups as Al Qaeda, nor Al Qaeda itself (statement of claim, para 26(b)). When the principal Plaintiff asked for more detail on the question, the

officer refused due to “secrecy” concerns. [ 6 ] In March 2014, the redetermination of the Plaintiffs’ permanent residence application resulted in a second negative decision. The refusal explained that “there are reasonable grounds to believe [the principal Plaintiff is] a member of the inadmissible class of persons described in 34(1)(f)” of the IRPA . [ 7 ] In September 2014, once again the Federal Court ordered that the second negative decision be set aside and the matter was sent back for redetermination.

On the record as it stands, the Plaintiffs had not heard from the Crown with respect to this second redetermination. The Plaintiffs sued. II. Arguments [ 8 ] Fundamentally, the Plaintiffs argue that they have been mistreated in Canada’s immigration system to a degree that warrants compensation. They allege the Defendant is liable in tort for misfeasance in public office, abuse and excess of jurisdiction and authority, abuse of process, negligence and negligent investigation, conspiracy, and for breaches of the plaintiffs’

section 7 and

section 15 Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ] rights. [ 9 ] The Plaintiffs are seeking: i. general damages in the amount of $200,000 per Plaintiff; ii. aggravated damages in the amount of $50,000 per Plaintiff; iii. punitive damages in the amount of $50,000 per Plaintiff; iv. any and all economic loss damages pleaded, to be calculated at trial; v. a declaration and/or finding that

section 49 of the Federal Courts Act , barring jury trials in the Federal Court, is unconstitutional, and of no force and effect; vi. a declaration and/or finding that the requirement to seek leave from an administrative decision, under the IRPA , to commence judicial review under

section 18 of the Federal Courts Act , pursuant to section 72(1) of the IRPA, violates the constitutional right to judicial review and a fair and independent judiciary and is of no force and effect; and vii. solicitor-client costs of this action and any other relief the Court deems just. [ 10 ] The Defendant contends in her motion to strike that the statement of claim fails to establish any of the alleged causes of action and does not properly plead damages.

They further seek to strike the two named Ministers (Foreign Affairs and Citizenship and Immigration) from the action in favour of Her Majesty the Queen, as well as the Plaintiffs’ constitutional arguments respecting the Federal Courts Act and the IRPA . III. Law on a motion to strike [ 11 ] Is before the Court the motion to strike brought on behalf of the Defendant.

Rule 221(1) permits the Court to strike a claim on certain grounds: 221(1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it 221(1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou

partie d’un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas : (

a) discloses no reasonable cause of action or defence, as the case may be,

a) qu’il ne révèle aucune cause d’action ou de défense valable; (

b) is immaterial or redundant,

b) qu’il n’est pas pertinent ou qu’il est redondant; (

c) is scandalous, frivolous or vexatious,

c) qu’il est scandaleux, frivole ou vexatoire; (

d) may prejudice or delay the fair trial of the action,

d) qu’il risque de nuire à l’instruction équitable de l’action ou de la retarder; (

e) constitutes a departure from a previous pleading, or

e) qu’il diverge d’un acte de procédure antérieur; (

f) is otherwise an abuse of the process of the Court,

f) qu’il constitue autrement un abus de procédure. and may order the action be dismissed or judgment entered accordingly. Elle peut aussi ordonner que l’action soit rejetée ou qu’un jugement soit enregistré en conséquence. The Defendant primarily relies on Rule 221(1)(a), which allows a claim to be struck if it “discloses no reasonable cause of action.” . Rule 221(1)(

c) is also in play. [ 12 ] The test to strike a claim under Rule 221 sets a high bar. First, it is assumed that the facts stated in the statement of claim can

be proven. The Court must be satisfied that it is plain and obvious that the pleading discloses no reasonable cause of action assuming thefacts pleaded are true: R v Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 SCR 45 at para 17; Hunt v Carey Canada Inc, (SCC), [1990] 2 SCR 959 [Hunt] at p 980.

The Defendant bears the onus of meeting this test: Sivak v Canada, 2012 FC 272,406 FTR 115 [Sivak] at para 25. [13] In Hunt, the Supreme Court sided with the articulation of the rule in England to the effect that “if there is a chance that theplaintiff may succeed, then the plaintiff should not be “driven from the judgment seat”” (p. 980). A high bar indeed to succeed on amotion to strike. Some chance of success will suffice or, as Justice Estey said in Att.

Gen. of Can. v Inuit Tapirisat et al, (SCC), [1980] 2 SCR 735, “(o)n a motion such as this a court should, of course, dismiss the action or strike out any claim made by theplaintiff only in plain and obvious cases and where the court is satisfied that "the case is beyond doubt"” (p.740). [14] To show a plaintiff has a reasonable cause of action, the statement of claim must plead material facts satisfying every elementof the alleged causes of action: Mancuso v Canada (National Health and Welfare), 2015 FCA 227, 476 NR 219 [Mancuso] at para 19;Benaissa v Canada (Attorney General), 2005 FC 1220 [Benaissa] at para 15.

The plaintiff needs to explain the “who, when, where, howand what” giving rise to the Defendant’s liability (Mancuso, para 19, Baird v Canada, 2006 FC 205 at paras 9-11, affirmed in 2007 FCA48). [15] Thus, there appears to be a balance. On one hand, a chance of success is enough for the matter to proceed. On the other, thematerial facts must be pleaded in sufficient detail such that the cause of action may exist. The purpose of pleadings is to give notice tothe opposing party and define the issues in such a way that it can understand how the facts support the various causes of action.

As theCourt of Appeal put it in Mancuso, “(i)t is fundamental to the trial process that a plaintiff plead material facts in sufficient detail tosupport the claim and relief sought” (para 16). The Plaintiffs note that pleadings can still proceed despite being “far from models of legalclarity” (Manuge v Canada, 2010 SCC 67, [2010] 3 SCR 672 at para 23).

But it remains that adequate material facts must be pleaded.Parties cannot make broad allegations in their statement of claim in the hope of later going on a “fishing expedition” to discover thefacts: Kastner v Painblanc (1994), 176 NR 68, 51 ACWS (3d) 428 (FCA) at p.2. [16] Rules 174 and 181 further define the minimum requirements for a statement of claim.

Pursuant to Rule 174, every pleadingmust contain the material facts on which the party relies. 174 Every pleading shall contain a concisestatement of the material facts on which theparty relies, but shall not include evidence bywhich those facts are to be proved. 174 Tout acte de procédure contient unexposé concis des faits substantiels surlesquels la

partie se fonde; il ne comprendpas les moyens de preuve à l’appui de cesfaits. Rule 181 requires that a pleading contain particulars of any alleged state of mind of a person, malice, or fraudulent intention. 181(1) A pleading shall contain particulars ofevery allegation contained therein, including181(1) L’acte de procédure contient desprécisions sur chaque allégation, notamment :(

a) particulars of any allegedmisrepresentation, fraud, breach of trust,wilful default or undue influence; and

a) des précisions sur les fausses déclarations,fraudes, abus de confiance, manquementsdélibérés ou influences indues reprochés;(

b) particulars of any alleged state of mind ofa person, including any alleged mentaldisorder or disability, malice or fraudulentintention.

b) des précisions sur toute allégation portantsur l’état mental d’une personne, tel undéséquilibre mental, une incapacité mentaleou une intention malicieuse ou frauduleuse. [17] But what are “material facts”? They cannot be conclusions or bald allegations: Merchant Law Group v Canada RevenueAgency, 2010 FCA 184 at para 34; 321 DLR (4th) 301 [Merchant]; Mancuso at paras 17-18. You cannot plead bad faith as a materialfact by merely stating phrases such as “deliberately or negligently” or “callous disregard:” Zündel v Canada, 2005 FC 1612 at para 16,affirmed in 2006 FCA 356. A modicum of story-telling is required.

The statement of claim must contain enough facts for the Defendantto understand, for instance, what the bad faith allegation is based on. [18] The jurisprudence suggests that a pleading can fall into one of three categories along a spectrum. The pleading either showsno scintilla of a cause of action, in which case the motion to strike would succeed, shows a scintilla of a cause of action, in which casethere may be leave to amend, or it shows a reasonable cause of action.

The Federal Court of Appeal similarly described in Mancusomaterial facts and bald allegations as lying on a continuum: [18] There is no bright line between material facts and bald allegations, nor between pleadings of material facts and the prohibition onpleading of evidence. They are points on a continuum, and it is the responsibility of a motions judge, looking at the pleadings as a whole,to ensure that the pleadings define the issues with sufficient precision to make the pre-trial and trial proceedings both manageable andfair. IV. Issues [19] Motions to strike can present short questions with lengthy answers.

Based on the aforementioned law, we are concerned withtwo overarching issues in this case: 1. Is it plain and obvious that the statement of claim discloses no reasonable cause of action with respect to some or all of theclaims? 2. Do some claims that could be struck nevertheless show a scintilla of a cause of action such that the Plaintiffs should be granted

leave to amend those claims? V. Analysis of each alleged cause of action [ 20 ] The Court must take the statement of claim as it is. It must be read as generously as possible, thereby avoiding to put weight on what may be drafting deficiencies. However, would not be drafting deficiencies what would amount to speculations, hoping to find facts on discovery to support the allegations made. In effect, the motions judge is looking for the facts, taken as proven at this stage that will satisfy all of the necessary elements of the cause of action. A.

Material facts [ 21 ] We find guidance in the binding decision of the Federal Court of Appeal in Mancuso on the requirements for a statement of claim to resist a motion to strike under rule 221. [ 22 ] The main theme in Mancuso is the requirement that there be sufficient material facts pleaded. The material facts that are pleaded must be sufficient to support the claim and the relief sought. That means therefore that the facts must be advanced so that the cause of action may be established, leading to an appropriate remedy.

The Court of Appeal agreed with the judge in Mancuso that “pleadings play an important role in providing notice and defining the issues to be tried and that the Court and opposing parties cannot be left to speculate as to how the facts might be variously arranged to support various causes of action” (para 16). The plaintiff must commit to more than merely stating some facts, a sort of narrative taken as proven, and then posit a series of alleged causes of action in order to prevail on a motion to strike. [ 23 ] A plaintiff will want to maximize her flexibility in a statement of claim. But she “must plead, in

summary form but with sufficient detail, the constituent elements of each cause of action or legal ground raised. The pleading must tell the defendant who, when, where, how and what gave rise to its liability” ( Mancuso , para 19 ). As is often the case, the principle behind the rule helps understand the scope of the requirement. Hence, we read at paragraph 17 of Mancuso : [17] The latter part of this requirement – sufficient material facts – is the foundation of a proper pleading.

If a court allowed parties to plead bald allegations of fact, or mere conclusory statements of law, the pleadings would fail to perform their role in identifying the issues. The proper pleading of a statement of claim is necessary for a defendant to prepare a statement of defence. Material facts frame the discovery process and allow counsel to advise their clients, to prepare their case and to map a trial strategy.

Importantly, the pleadings establish the parameters of relevancy of evidence at discovery and trial. [ 24 ] Thus, adequate pleadings are required up front; adequate material facts are mandatorily required. As put by the Mancuso Court at para 20 , “(p)laintiffs cannot file inadequate pleadings and rely on a defendant to request particulars, nor can they supplement insufficient pleadings to make them sufficient through particulars: AstraZeneca Canada Inc. v.

Novopharm Limited , 2010 FCA 112 .” [ 25 ] That translates into the requirement that tort claims be identified and then the material facts are set out such that the elements of the tort claim are satisfied. In my view, that is largely missing in this statement of claim, which has made the examination of the motion to strike quite cumbersome. B. How the statement of claim is organized [ 26 ] The statement of claim is difficult to apprehend and somewhat unwieldy.

It starts off with bald allegations of various infringements, be they abuse of process, excess of authority, public misfeasance, negligence, negligent investigation, contempt of two Federal Court Judgments, as well as violation of

section 15 and 7 of the Charter . For good measure, there is also an allegation that

section 49 of the Federal Courts Act (prohibition of jury trails) and 72 of the IRPA (requirement that leave be granted for judicial review) are unconstitutional and of no force and effect. [ 27 ] It then continues with a series of paragraphs that allege facts, what constitutes in fact a narrative. Follow a number of paragraphs which provide a series of heads of damages that allegedly would result from the facts as presented.

The chapeau of para 30 simply states that damages were suffered as a result of “officials’ inexcusable delay, false and unfounded allegations, and breach of duty to process the main Plaintiffs’ application.” [ 28 ] Paragraphs 32 to 35 of the statement of claim that the Plaintiffs list causes of action. Thus, para 32 declares that there was: • abuse and excess of jurisdiction and authority; • abuse of process at common law and

section 7 of the Charter ; • public misfeasance. The paragraph ends with a mere declaration, without any connection with the facts, that “tortious conduct has caused the damages” .

What particular facts constitute the alleged tortious conduct is nowhere to be found in the pleading. [ 29 ] Para 34 of the statement of claim seeks to be somewhat more precise in suggesting that the delay between various proceedings constitutes in itself abuse and excess of authority as well as public misfeasance, alleging bad faith at para 35. [ 30 ] The Plaintiffs chose to plead in the alternative that officials have been negligent and engaged in negligent investigation. As for these causes of action, the statement of claim does not state what facts are pled in support of its essential elements.

Rather, it is simply stated that they are owed a duty of care “to competently and with due dispatch properly process an application …as well as competently

and diligently investigate any allegations of inadmissibility” (para 36). [31] In the further alternative, the Plaintiffs allege a conspiracy to deny their permanent residence. This time, the allegations arebarely more precise in that the Plaintiffs allege “a contrived denial made in bad faith”, delay and baseless association with Al Qaeda(para 37). I note that, again, the material facts that would give precision to the alleged conspiracy are not stated.

In fact, there is a generalallegation of conspiracy, but bad faith, delay and baseless association do not make a conspiracy, i.e. where there is proof of agreementand execution. The Defendant does not know who, when, where, how and what which would give rise to its liability. C. Amending pleadings [32] It does not suffice for the Court to rule that a pleading is deficient. Rule 221 requires consideration of whether a pleadingshould be struck with or without leave to amend.

The jurisprudence points to various considerations which come into play in makingsuch determination. [33] The Plaintiffs have raised the possibility that if the statement of claim is struck in part or in whole, leave to amend thepleadings should be granted.

As long as a pleading shows a scintilla of a cause of action, it will not be struck out if it can be cured byamendment: Hunt at pp 976-978; Simon v Canada, 2011 FCA 6 [Simon] at para 8; Collins v Canada, 2011 FCA 140 at para 30 [Collins];Sivak at para 94; Sweet v Canada (1999), 249 NR 17 at para 21 (FCA) [Sweet]; Larden v Canada, (1998) (FC), 145FTR 140 at para 26; Kiely v Her Majesty the Queen, (1987) 10 FTR 10 (FCTD) at p 2; Waterside Ocean Navigation Co Inc vInternational Navigation Ltd, (FC), [1977] 2 FC 257 at para 4. [34] The case law teaches that a pleading will not be struck out without leave to amend unless there is no scintilla of a cause ofaction (McMillan v Canada, (1996) 108 FTR 32 [McMillan] and Sivak).

But there must be that scintilla. As Associate Chief JusticeJerome put it in McMillan, “(t)he burden on the applicant under R. 419 (1)(

a) is heavy since portions of the pleadings will only be struckout if it is clear that the claim cannot be amended to show a proper cause of action” (para 39). [35] However, it is not for the Court to redraft the pleadings.

In Sweet, the Court of Appeal commented that “(e)ach proceeding isto be assessed on its own merits, with consideration being given to, inter alia, the personal situation of the party, the issues andarguments raised, the manner and tone in which they are raised, the number and proportion of allegations that are defective and thereadiness of the amendments needed” (my emphasis, para 21). [36] In fact, if a scintilla of a cause of action has been pleaded, this Court may be more reticent to strike claims without leave toamend in case it is the first version of the pleading, as in this case.

In Simon and Collins, the Court of Appeal warned that failure tocomply with the rules once the pleadings have been allowed to be amended would expose the pleadings to the risk of being struck out(Simon at para 17 and Collins at para 31). D. Alleged causes of action [37] At the outset of the hearing, the parties agreed that the Defendant’s list of claims was a satisfactory way to organize thediscussion. I will proceed through each claim in this order and address the two issues identified above. Claim 1: Misfeasance in public office [38] The statement of claim alleges the tort of misfeasance in public office.

Because it constitutes the cause of action on which thePlaintiffs have chosen to rely the most heavily, I have attempted to gather the various paragraphs of the statement of claim which refer tomisfeasance: 1.

The Plaintiffs claim […] all of which damages arise from: […] (ii) the Defendants’ servants and officers’ actions, and lack of action and omissions, in not issuing the permanent resident visas, and notcomplying with the Federal Court orders, constitutes an abuse of process, abuse and excess of authority and jurisdiction, publicmisfeasance, as well as negligence, and negligent investigation, all compensable at common-law, under the Immigration and RefugeeProtection Act (“IRPA”), as well as s. 24(1) of the Charter. […] 32. The Plaintiffs state, and the fact is that: (

a) the Defendants’ officials have, with knowledge and intent, abused process, abused and exceeded authority and jurisdiction, andengaged in public misfeasance of their office, in their refusal to lawfully abide by the Federal Court order and terms of the IRPA andRegulations, and issue permanent residence visas, and in the refusal(

s) to give any cogent and/or sober answers to the plaintiffs and theircounsel, except stone silence and stone-walling and that the Defendants’ servants and officials have: […] (iii) engaged in public misfeasance as set out by the Supreme Court of Canada in Odhavji Estate v. Woodhouse 2003 SCC 69 ,[2003] 3 S.C.R. 263, in that: A/ the officials engaged in deliberate, unlawful conduct in the exercise of their public functions; B/ the officials are aware that the conduct is unlawful and likely to injure the plaintiffs; and C/ the officials’ tortious conduct is the legal cause of the plaintiffs’ injuries pleaded herein;

[…] 33. The Plaintiffs state that the Defendants’ officials have a common-law duty, as well as a statutory duty under s. 3(1)(

f) of the IRPA, asinterpreted and confirmed by this Court, in Dragan v Canada QL 2003 FCT 211 , [2003] F.C.J. No. 260 and Liang v Canada(M.C.I.) 2012 FC 758 decisions to process applications consistently and promptly, which sub-section reads: 3.

(1) The objectives of this Act with respect to immigration are … (

f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by theGovernment of Canada in consultation with the provinces […] 34. The Plaintiffs state that the Defendants’ inexcusable, inordinate, and castigating delay, both between the time of the 1st judicial review and the 2nd negative decision, as well as the 2nd judicial review to the present, constitutes abuse and excess of authority, as wellas public misfeasance, of public office, in that inexcusable delay has been determined to constitute public misfeasance in inter alia,McMaster v.

Canada, [2009] F.C.J. No. 1071, by this Court. 35. The Plaintiffs further state that the conduct of the officers, and nature and substance of both decisions to deny the Plaintiffspermanent residence, has been made in bad faith, and absence of good faith, and further constitutes public misfeasance as set out above inthe within statement of claim. [39] As indicated earlier, the Plaintiffs must plead with sufficient detail the constituent elements of each cause of action. But that isnot enough. The Plaintiffs must also plead material facts in sufficient detail.

As already indicated earlier, the trial judge in Mancusocommented, and it was specifically approved by the Court of Appeal, that “opposing parties cannot be left to speculate as to how thefacts might be variously arranged to support various causes of action” (para 16). I am afraid this statement of fact suffers from that verydeficiency. The elements of the tort of misfeasance are set out in Odhavji Estate v Woodhouse, 2003 SCC 69, [2003] 3 SCR 263 at paras22-23 [Woodhouse]. The tort may take two different forms, but each requires the elements which are common to both.

These elementsare “(f)irst, the public officer must have engaged in deliberate and unlawful conduct in her or her capacity as a public officer. Second, thepublic officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff” (para 23). Thetort may be approached in two ways. The two elements can be independently established, requiring unlawful conduct and knowledgethat conduct was likely to cause harm.

Or, both elements can be satisfied by proving the public officer specifically intends to injure aperson because such officers do not have the authority to exercise their powers for an improper purpose (Woodhouse at para 23). [40] The first element is focused on whether the alleged misconduct is deliberate and unlawful. This can arise from

an act oromission that “arises[s] from a straightforward breach of the relevant statutory provisions or from acting in excess of the powers grantedfor an improper purpose”: Three Rivers District Council v Bank of England (No. 3), [2000] 2 WLR 1220 at p 1269, cited in Woodhouseat para 24. [41] The second element establishes the nexus between the impugned public official and the plaintiff by requiring that defendantsknow that their conduct was unlawful and likely to harm.

One can read at paragraph 29 of Woodhouse: The requirement that the defendant must have been aware that his or her unlawful conduct would harm the plaintiff furtherrestricts the ambit of the tort. Liability does not attach to each officer who blatantly disregards his or her official duty, but only to a publicofficer who, in addition, demonstrates a conscious disregard for the interests of those who will be affected by the misconduct in question.This requirement establishes the required nexus between the parties.

Unlawful conduct in the exercise of public functions is a publicwrong, but absent some awareness of harm there is no basis on which to conclude that the defendant has breached an obligation that sheor he owes to the plaintiff, as an individual. And absent the breach of an obligation that the defendant owes to the plaintiff, there can beno liability in tort.

The Court has further commented that this element requires the Defendant, at the very least, to have been “subjectively reckless orwilfully blind as to the possibility that harm was a likely consequence of the alleged misconduct” (Woodhouse at para 38). [42] The requirement that the Defendant must have known that the conduct was unlawful is essential to the tort of misfeasance inpublic office.

A public official’s decision may well be adverse to certain people’s interests, and yet still be lawful: The requirement that the defendant must have been aware that his or her conduct was unlawful reflects the well-established principle thatmisfeasance in public office requires an element of “bad faith” or “dishonesty”. In a democracy, public officers must retain the authorityto make decisions that, where appropriate, are adverse to the interests of certain citizens. Knowledge of harm is thus an insufficient basison which to conclude that the defendant has acted in bad faith or dishonestly.

A public officer may in good faith make a decision that sheor he knows to be adverse to the interest of certain members of the public. In order for the conduct to fall within the scope of the tort, theofficer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office. (Woodhouse, para 28) [43] With that understanding of the tort, I will assess whether the statement of claim sufficiently pleads both tort elements for eachof the Plaintiffs’ misfeasance pleadings. The statement of claim seems to allege misfeasance on four grounds: (

i) refusal to abide byFederal Court orders; (ii) refusal to issue permanent resident visas; (iii) refusal to provide “cogent and/or sober” answers to questionsposed by the Plaintiffs; and (iv) delay in processing the Plaintiffs’ permanent residence applications. For the first three grounds, thePlaintiffs allege that the actions were done “with knowledge and intent”, but no similar claim is made with respect to the allegedprocessing delay.

(1) Misfeasance claim 1: Contempt

[44] I see no potential for deliberate, unlawful conduct in the first allegation of contempt. The statement of claim says both Courtorders sent the visa decision back for redetermination. There is no indication as to how the redetermination should proceed. No directionwas given by the Court. The first redetermination resulted in a second negative decision, and the second redetermination is outstanding.The pleadings contain no facts, let alone material facts, showing that the orders were not followed.

In fact, the exact opposite occurred.There was no refusal to abide by the court orders. [45] As a result, I cannot see a scintilla of a cause of action in the Plaintiffs’ claim that the Defendant failed to abide by the ordersin bad faith. I am striking the misfeasance claim respecting the “refusal to abide by Federal Court orders” without leave to amend.

(2) Misfeasance claim 2: Refusal to issue permanent visas [46] The second allegation is not, prima facie, unlawful. The act of refusing to issue permanent residence visas regularly occurs asa result of implementing IRPA. In this case, it is not completely clear on the record how the refusal to issue visas constitutesmisfeasance. [47] The statement of claim offers that the first visa officer awarded the principal Plaintiff the wrong number of points under theIRPR in the face of evidence to the contrary and that the visas were denied “with knowledge and intent”.

The relevant provisions setprecise point allocations for the adaptability criterion, leaving the visa officer little discretion in how to award points for a Canadianrelative or a spouse’s education. [48] It also states that the second visa officer deemed the principal Plaintiff inadmissible on the basis of wrong information. Therelevant inadmissibility provisions of IRPA state that a foreign national is inadmissible for “being a member of an organization that thereare reasonable grounds to believe engages, has engaged or will engage in acts referred to [in above subsections]” (para 34(1)(

f) of IRPA).The determination of whether that organization engages in the enumerated acts requires that the officer must have “reasonable grounds”to believe in order to make that decision. That leaves a measure of appreciation to the officer. Certainty beyond a reasonable ground isnot required. The test does not contemplate either that the officer be satisfied on a balance of probabilities, the legal standard in civilmatters (Canada (Attorney General) v Fairmont Hotels Inc., 2016 SCC 56, [2016] 2 SCR 720). Reasonable grounds to believe willsuffice.

The Plaintiffs, on the other hand, state that there is no basis for the inadmissibility finding. [49] The phrase “with knowledge and intent” is a bald conclusion; however, there are sufficient material facts alleged early in thestatement of claim to appreciate that there is a basis for the claim that both actions were deliberate conduct. It appears to me that there isa scintilla of a cause of action pleaded however imperfectly. But more precision is needed.

The material facts must be plainly identifiedand they must be connected to the elements of the tort asserted, including of course the required state of mind (Mancuso, para 26). [50] The second tort element is knowledge that the visa denials were unlawful and likely to harm the Plaintiffs. The statement ofclaim says that the visa officers denied the lawful visa issuance “with knowledge and intent” and “in bad faith”.

If the officers didaward the wrong number of points and deem the principal Plaintiff inadmissible in the face of clearly contradictory evidence, this issufficient to plead that the officers knew their conduct was unlawful. Woodhouse found that a similarly-worded pleading was sufficientto establish a reasonable cause of action in misfeasance: Insofar as the second requirement is concerned, the statement of claim alleges that the acts and omissions of the defendant officers“represented intentional breaches of their legal duties as police officers”.

This plainly satisfies the requirement that the officers wereaware that the alleged failure to cooperate with the investigation was unlawful.

The allegation is not simply that the officers failed tocomply with s. 113(9) of the Police Services Act, but that the failure to comply was intentional and deliberate. (Woodhouse, para 36) [51] The only reference to knowledge that the unlawful conduct would likely harm the Plaintiffs is at paragraph 35, which states“that the conduct of the officers, and nature and substance of both decisions to deny the Plaintiffs permanent residence, has been made inbad faith” and the general assertion that the alleged misfeasance was done “with knowledge”.

Bald conclusions such as “in bad faith” donot qualify as material facts (Merchant at para 34). Moreover, Rule 181 requires that Plaintiffs provide particulars on the material factsthey are pleading to support a tort’s mental element. Here, the Plaintiffs seem to be pointing to several circumstantial facts to argue thatthe Defendant intentionally misprocessed their permanent residence applications over a ten-year period to keep them out of Canada. [52] If someone applies for a permanent residence visa, they expect to have it properly processed because they want to live inCanada.

It is not a stretch to infer that improper denial of such a visa would likely harm applicants wanting to come to Canada. Ofcourse, the statement of claim should actually plead specifically the material facts necessary to make out this second tort element. Thatwas not done. Mancuso requires the who, when, where, how and what. The issue must be defined with more precision in order to makethe proceedings manageable and fair. The amended pleadings will have to provide the material facts such that the Defendant will knowwhat it is defending against.

At this stage, one has to speculate somewhat as to what facts constitute the cause of action. More and betterprecision is called for. [53] My role on a motion to strike is not to decide the Plaintiffs’ chance of succeeding with this argument (Minnes v Minnes(1962), (BC CA), 39 WWR 112). Because I see a scintilla of a cause of action, barely, I am also granting leave toamend this particular misfeasance claim with respect to the second tort element (i.e. material facts underpinning the allegation that thepublic official “knew” that their act or omission would likely harm the Plaintiff).

(3) Misfeasance claim 3: Refusal to provide answers [54] The fact that the Defendant refused to answer the Plaintiffs’ questions does not show unlawful conduct. This does not show acause of action, let alone a reasonable one. Unlike the points calculation and the inadmissibility decision, the Plaintiffs failed to point to astatutory obligation that the visa officer(

s) breached or show that the officer(

s) acted unlawfully in the exercise of their public functionsgenerally. As a result, I am striking the misfeasance allegation concerning the “refusal to provide “cogent and/or sober” answers to

questions posed by the Plaintiffs” without leave to amend.

(4) Misfeasance claim 4: Delay in processing visa applications [ 55 ] For the fourth misfeasance allegation regarding processing delays, the Plaintiffs relied on McMaster v Canada , 2009 FC 937 , 352 FTR 255 [ McMaster ] for the authority that delay can constitute unlawful conduct in a misfeasance action. McMaster concerned an inmate who was repeatedly denied properly-sized running shoes in the face of a statutory obligation to provide adequate footwear. The statutory obligation that the Plaintiffs rely on for delay in the immigration context is subsection 3(1) (

f) of IRPA , as interpreted in Liang v Canada (Citizenship and Immigration) , 2012 FC 758 at paragraph 25 ; 413 FTR 145 [ Liang ] and Dragan v Canada (Minister of Citizenship and Immigration) , 2003 FCT 211 at paragraph 45 , 227 FTR 272 [ Dragan ]. This subsection states: 3

(1) The objectives of this Act with respect to immigration are […] (

f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces; Liang and Dragan found, on applications for mandamus , that unreasonable delay can amount to an implied refusal to perform the statutory duty to process visa applications under the IRPA .

Justice Rennie, then of this Court, found in Liang that a prima facie case for delay was made out where applications requiring processing had been outstanding for 4.5 to 10 years. [ 56 ] The Defendant seeks to distinguish Liang and Dragan on the basis that they dealt with applications for mandamus , not private law actions.

They argue that “even where delays are found to be unreasonable or inordinate, this does not give rise to a free-standing cause of action” , citing Farzam v Canada (Minister of Citizenship and Immigration) , 2005 FC 1659 , 284 FTR 158 [ Farzam ] at para 105 ; and Haj Khalil v Canada , 2007 FC 923 , 317 FTR 32 [ Khalil ] at para 8 (affirmed in Haj Khalil v Canada , 2009 FCA 66 ) (at para 28 of their written representations).

Both Farzam and Khalil dealt with actions in negligence, not misfeasance in public office. [ 57 ] The Plaintiffs’ visa applications have been effectively outstanding for 10 years given they are still waiting for the outcome of their second redetermination. This falls at the outer end of Justice Rennie’s suggested timelines for establishing prima facie unreasonable delay in the mandamus context. The Defendant has not presented an authority stating that unreasonable delay in processing visa applications cannot amount to unlawful conduct for the purposes of a misfeasance action.

As a result, this appears to be an issue requiring discussion at trial and not on a motion to strike. The Supreme Court in Hunt commented that “(p)rovided that the plaintiff can present a "substantive" case, that case should be heard” (p 975). It is premature on a motion to strike to rule on the matter. [ 58 ] As noted above, unlike the first three misfeasance allegations, the Plaintiffs failed to specifically plead that the delay was “deliberate” , but did plead that it was done “in bad faith” , which implies a measure of deliberation.

There are circumstantial facts that could support this tort element, namely the use of different grounds to refuse the visas in the first and second denial, but the statement of claim fails to plead clearly that the delays were deliberate.

In Woodhouse , the Supreme Court struck allegations that lacked the words “deliberate” and “intentional” , because inadvertence or negligence is insufficient to make out the intentional tort of misfeasance: 37 Although the allegation that the Chief deliberately failed to segregate the officers satisfies the requirement that the Chief intentionally breached his legal obligation to ensure compliance with the Police Services Act , the same cannot be said of his alleged failure to ensure that the defendant officers produced timely and complete notes, attended for interviews in a timely manner, and provided accurate and complete accounts of the incident.

As above, inadvertence or negligence will not suffice; a mere failure to discharge the obligations of the office cannot constitute misfeasance in a public office . In light of the allegation that the Chief’s failure to segregate the officers was deliberate, this is not a sufficient basis on which to strike the pleading.

Suffice it to say, the failure to issue orders for the purpose of ensuring that the defendant officers cooperated with the investigation will only constitute misfeasance in a public office if the plaintiffs prove that the Chief deliberately failed to comply with the standard established by s. 41(1)(

b) of the Police Services Act . [my emphasis] Through the narrative offered as facts, I see however a scintilla of a cause of action on this first tort element, but the pleadings must properly set out the full cause of action. They will have to be significantly amended. [ 59 ] As with the second misfeasance claim, the pleadings on the second tort element—knowledge of unlawful conduct and likelihood of harming the Plaintiffs—are not explicit and are close to being bald, which fails to meet the requirements of Rules 174 and 181.

With respect to the Defendant’s knowledge that their delays were unlawful, the statement of claim fails to plead the material facts showing which public officials had this knowledge. Was the first officer aware of an unlawful delay that would likely cause harm in 2009, or only the second officer in 2014? Or was it other individuals that knew the delay was unlawful? [ 60 ] With respect to the Defendant’s alleged knowledge that the delays were unlawful and likely to harm the Plaintiffs, I see a scintilla of a cause of action.

It is reasonable to infer that an alleged 10-year delay in processing does not fulfill the IRPA objective of “prompt processing” and would likely cause harm to the waiting family. However, again, the statement of claim must plead sufficient material facts to qualify as a reasonable cause of action.

I would not strike the pleadings without allowing an opportunity to amend in order to satisfy the requirements. [ 61 ] Accordingly, I am granting leave to amend this particular misfeasance claim with respect to the first tort element prerequisite that the unlawful conduct was deliberate, and with respect to the second tort element requirement that the public official “knew” that their act or omission was unlawful and likely to harm the Plaintiffs.

Claim 2: Abuse and excess of jurisdiction and authority [ 62 ] The Plaintiffs refer to “abuse and excess of jurisdiction and authority” at multiple points in their pleadings, often in concert

with their claims respecting misfeasance in public office: 1. The Plaintiffs claim […] all of which damages arise from: […] (ii) the Defendants’ servants and officers’ actions, and lack of action and omissions, in not issuing the permanent resident visas, and notcomplying with the Federal Court orders, constitutes an abuse of process, abuse and excess of authority and jurisdiction, publicmisfeasance, as well as negligence, and negligent investigation, all compensable at common-law, under the Immigration and RefugeeProtection Act (“IRPA”), as well as s. 24(1) of the Charter. […] 32. The Plaintiffs state, and the fact is that: (

a) the Defendants’ officials have, with knowledge and intent, abused process, abused and exceeded authority and jurisdiction, andengaged in public misfeasance of their office, in their refusal to lawfully abide by the Federal Court order and terms of the IRPA andRegulations, and issue permanent residence visas, and in the refusal(

s) to give any cogent and/or sober answers to the plaintiffs and theircounsel, except stone silence and stone-walling and that the Defendants’ servants and officials have: […] (

i) engaged in abuse and excess of jurisdiction and authority as historically contemplated by the Supreme Court of Canada in Roncarelliv. Duplessis, (SCC), [1959] S.C.R. 121, et seq [Roncarelli]; […] 34. The Plaintiffs state that the Defendants’ inexcusable, inordinate, and castigating delay, both between the time of the 1st judicial review and the 2nd negative decision, as well as the 2nd judicial review to the present, constitutes abuse and excess of authority, as wellas public misfeasance, of public office, in that inexcusable delay has been determined to constitute public misfeasance in inter alia,McMaster v.

Canada, [2009] F.C.J. No. 1071, by this Court. [63] The Defendant argues that abuse and excess of authority and jurisdiction alleged by the Plaintiffs is encapsulated in the tort ofmisfeasance. I agree. The following discussion of the tort of misfeasance in public office in Woodhouse confirms that it covers the claimof abuse and excess of authority and jurisdiction as contemplated in Roncarelli v Duplessis, (SCC), [1959] SCR 121: 18 The origins of the tort of misfeasance in a public office can be traced to Ashby v. White (1703), 2 Ld.

Raym. 938, 92 E.R. 126, inwhich Holt C.J. found that a cause of action lay against an elections officer who maliciously and fraudulently deprived Mr. White of theright to vote. Although the defendant possessed the power to deprive certain persons from participating in the election, he did not havethe power to do so for an improper purpose. Although the original judgment suggests that he was simply applying the principle ubi jusibi remedium, Holt C.J. produced a revised form of the judgment in which he stated that it was because fraud and malice were proventhat the action lay: J. W.

Smith, A Selection of Leading Cases on Various Branches of the Law (13th ed. 1929), at p. 282. Thus, in itsearliest form it is arguable that misfeasance in a public office was limited to circumstances in which a public officer abused a poweractually possessed. 19 Subsequent cases, however, have made clear that the ambit of the tort is not restricted in this manner. In Roncarelli v. Duplessis, (SCC), [1959] S.C.R. 121, this Court found the defendant Premier of Quebec liable for directing the manager of theQuebec Liquor Commission to revoke the plaintiff’s liquor licence.

Although Roncarelli was decided at least in part on the basis of theQuebec civil law of delictual responsibility, it is widely regarded as having established that misfeasance in a public office is a recognizedtort in Canada. See for example Powder Mountain Resorts Ltd. v. British Columbia (2001), 94 B.C.L.R. (3d) 14, 2001 BCCA 619; andAlberta (Minister of Public Works, Supply and Services) v. Nilsson (2002), 220 D.L.R. (4th) 474, 2002 ABCA 283.

In Roncarelli, thePremier was authorized to give advice to the Commission in respect of any legal questions that might arise, but had no authority toinvolve himself in a decision to revoke a particular licence. As Abbott J. observed, at p. 184, Mr. Duplessis “was given no statutorypower to interfere in the administration or direction of the Quebec Liquor Commission”. Martland J. made a similar observation, at p.158, stating that Mr. Duplessis’ conduct involved “the exercise of powers which, in law, he did not possess at all”.

From this, it is clearthat the tort is not restricted to the abuse of a statutory or prerogative power actually held. If that were the case, there would have been nogrounds on which to find Mr. Duplessis liable. [64] As a result, I am striking the reference to abuse and excess of jurisdiction and authority as a stand-alone cause of action. Thematter ought to be dealt with under the misfeasance claims once properly amended.

Claim 3: Abuse of process [65] The statement of claim pleads the tort of abuse of process in the same paragraphs already referred to above for misfeasance inpublic office and quoted at length at paragraph 38 of these reasons. [66] The Defendant contends that abuse of process “involves the misuse of the process of the courts to coerce someone in a waythat is outside the ambit of the legal claim upon which the court is asked adjudicate”: para 33 of the Defendant’s written representationsciting Levi Strauss & Co v Roadrunner Apparel Inc, (1997), (FCA), 76 CPR (3d) 129 (FCA) at p 3. [67] The Supreme Court of Canada authority provided by the Plaintiffs, United States of America v Cobb, 2001 SCC 19, [2001] 1SCR 587 [Cobb], also defines abuse of process in terms of abusing the court process: 37 Canadian courts have an inherent and residual discretion at common law to control their own process and prevent its abuse.

Theremedy fashioned by the courts in the case of an abuse of process, and the circumstances when recourse to it is appropriate weredescribed by this Court in R. v. Keyowski, (SCC), [1988] 1 S.C.R. 657, at pp. 658-59:

The availability of a stay of proceedings to remedy an abuse of process was confirmed by this Court in R. v. Jewitt, (SCC), [1985] 2 S.C.R. 128. On that occasion the Court stated that the test for abuse of process was that initially formulated by theOntario Court of Appeal in R. v. Young (1984), (ON CA), 40 C.R. (3d) 289. A stay should be granted where“compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fairplay and decency”, or where the proceedings are “oppressive or vexatious” ([1985] 2 S.C.R. [128], at pp. 136-37).

The Court in Jewittalso adopted “the caveat added by the Court in Young that this is a power which can be exercised only in the ‘clearest of cases’” (p. 137). [68] In a similar decision on a motion to strike, Prothonotary Aalto also concluded that Cobb relates to abuse of the court processand that the plaintiff failed to plead facts making out this tort: [64] On the tort of abuse of process, I agree with the Crown’s submissions that Cobb does not support the Plaintiff’s submission thatthis tort exists on these facts.

In Cobb, the Supreme Court explicitly defined abuse of process as abuse of the Court’s own process andthat definition did not include a public official’s abuse of any process in a vacuum.

The Plaintiff neither pleads facts relating to an abuseof a Court process nor did he provide any case-law that expands the tort of abuse of process beyond the abuse of the Court’s process asconceptualized in Cobb. (Almacén v Her Majesty the Queen, 2015 FC 957, upheld at 2016 FC 300 and subsequently upheld at 2016 FCA 296) [69] Moreover, the Plaintiffs pleaded no material facts going to the elements of this tort in their statement of claim (i.e. how orwhen a court process was abused). Actually, when discussions of immigration officials came before this Court, twice they were returnedfor a new determination.

It is difficult to see how seizing the Court on judicial review by the Plaintiffs can be an abuse of process of theCourt by the Defendant. Therefore, I am striking this claim without leave to amend. Claim 4: Negligence and negligent investigation [70] The statement of claim pleaded negligence and negligent investigation as follows: 36. In the alternative the Plaintiffs state that, the Defendants’ officials have been negligent, and engaged in negligent investigation, in theexercise of their common-law, statutory, and constitutional duties owed to the Plaintiffs in that: (

i) the Defendants’ officials owe a common-law, statutory, and constitutional, duty of care to competently and with due dispatch properlyprocess an application sent back by judicial order pursuant to an application for judicial review under the statutory scheme pursuant tothe IRPA as well as competently and diligently investigate any allegations of inadmissibility; (ii) the Defendants’ officials breached this duty of care; and (iii) as a result of this breach the Plaintiffs have suffered loss and damages which includes, inter alia; A/ the mental suffering and distress of separation between the plaintiffs and their family in Canada, also protected by s.7 of the Charter; B/ irreparable loss of companionship, of the Plaintiffs, particularly that involving the children; C/ economic loss, to be quantified at trial, in being deprived of, inter alia; (

i) the benefit of the Plaintiff, Emad Al Omani, to exercise his proper place and activity in the joint business interests of his brother inCanada; (ii) the incursion of legal costs incurred to date, to be determined at trial; D/ the mental stress and anguish of falsely being branded as associated with Al Qaeda, or such groups, which further endangers theirvery lives; E/ their right to equal treatment and protection under the law, as required by s. 3(3)(

d) of the IRPA, the structural imperatives of theConstitution, as well as s. 15 of the Charter, and loss of their dignity to the extent of unequal treatment under the law. [71] The Defendant argues that the Plaintiffs have failed to plead material facts pertaining to each element of a negligence action,particularly duty of care and breach of the standard of care. I agree.

The pleadings are declaratory, without any connection of materialfacts with the elements of the tort. [72] When a duty of care is not clearly established in the case law, the Anns test is used to determine if a duty exists, as per Cooperv Hobart, 2001 SCC 79, [2001] 3 SCR 537 at paragraph 30. The Defendant summarized the test at paragraph 36 of her writtenrepresentations: (

a) Does the relationship between the parties in the circumstances disclose the reasonably foreseeable harm and proximity sufficient toestablish a prima facie duty of care; and (

b) Notwithstanding the existence of a prima facie duty of care, are there residual policy considerations that should negative theimposition of a duty of care? [73] The only allegations that the Plaintiffs pleaded with respect to duty of care is to allege that the Defendant owes a duty of careto (i) “competently and with due dispatch properly process an application sent back by judicial order pursuant to an application forjudicial review under the statutory scheme pursuant to the IRPA” and to (ii) “competently and diligently investigate any allegations ofinadmissibility” (at para 36 of the statement of claim).

They pleaded no facts whatsoever going to either element of the Anns test (Anns vMerton London Borough Council, [1978] AC 728 (HL)).

[74] The Plaintiffs also pleaded scarce facts as to the breach of this alleged duty of care. Repeating the points above, they allegethe Defendant did not properly process an application sent back by judicial review and did not properly investigate allegations ofinadmissibility. In my view, this is less than thin. [75] The Plaintiffs stated that there exists a duty of care without even alleging how that can be. What is the duty of care that wasowed by immigration officers?

The English Court of Appeal in W. v Home Office, [1997] EWJ No 3289 (QL) [W. v Home Office] foundtwenty years ago that there is no proximity such that a duty of care exists between a plaintiff and immigration officers. One can read atpara 28: The process whereby the decision making body gathers information and comes to its decision cannot be the subject of an action innegligence. It suffices to rely on the absence of the required proximity.

In gathering information, and taking it into account, theDefendants are acting pursuant to their statutory powers and within that area of their discretion where only deliberate abuse wouldprovide a private remedy. For them to owe a duty of care to immigrants would be inconsistent with the proper performance of theirresponsibilities as immigration officers.

In conducting their inquiries, and making decisions in relation to immigrants, including whetherthey should be detained pending those inquiries, and making decisions in relation to immigrants, including whether they should bedetained pending those inquiries, they are acting in that capacity of public servant to which the considerations outlined above apply. That is the view taken by this Court in Premakumaran v Canada, 2005 FC 1131 [Premakumaran]. [76] In that case, finding support in A. O.

Farms Inc v Canada, (FC), [2000] FCJ no 1771, 28 Admin LR (3d)315 (FCA), the Court found that the immigration officers as agents of the government owe “a duty of care to the public as a whole andnot to the individual Plaintiffs. The Plaintiffs cannot be considered a "neighbour" for these purposes and no such relationship should becreated between the Defendant and individual members of the public” (Premakumaran, at para 25). The Federal Court of Appeal agreed.It found that “(i)n this case, however, no duty of care arises.

As the Motions Judge correctly found, no special relationship of proximityand reliance is present on the facts of this case” (Premakumaran v Canada, 2006 FCA 213, [2007] 2 FCR 191, at para 24). It is one thingto allege that the performance in office constitutes a misfeasance. It is quite another to base one’s claim on a duty of care leading to aclaim in negligence. Misfeasance and negligence are completely different and target different states of mind. [77] The W. v Home Office case found an echo in this Court in Benaissa.

There, the Court found that the process of the gathering ofinformation by the decision-making body leading to a decision cannot be the subject of an action in negligence. There may be, in myview, circumstances in which a degree of proximity will be sufficient. However, the bare assertion that unidentified immigration officersdeliberately failed to process the application for permanent residence in a timely fashion does not plead the duty of care that woulddistinguish this case and the facts that could disclose the factual basis for the allegation of negligence. This does not disclose areasonable cause of action.

I cannot see a scintilla of a cause of action. There is not even the beginning of something that could beamended. [78] Justice Russell faced a similar statement of claim in Sivak.

He struck the negligence claim for failing to plead material factsgoing to the essential elements of the tort of negligence: [45] I also agree with the Defendants that the Plaintiffs have not pled, or factually substantiated, the essential elements of the tort ofnegligence. [46] As the Defendants point out, to support a cause of action in negligence, a statement of claim must include sufficient facts tosupport the essential elements of the tort.

These include establishing a duty of care, providing details of the breach of that duty,explaining the causal connection between the breach of duty and the injury, and setting out the actual loss. Such a claim requires afactual basis that identifies each wrongful act as well as negligence, such as the “when, what, by whom and to whom of the relevantcircumstances.” See Benaissa v Canada (Attorney General), 2005 FC 1220, at paragraph 24. [47] The Plaintiffs make a bald allegation at paragraph 28(

b) of the Claim that the “Defendants’ officials have been negligent in theexercise of their common-law, statutory, and constitutional duties owed to the Plaintiffs” and that these duties arose in the context of theprocessing of their refugee claims pursuant to the Immigration and Refugee Protection Act. This is followed by unsubstantiatedstatements that the “Defendants’ officials breached this duty of care” and that this caused the Plaintiffs’ losses. [48] I agree with the Defendants that such allegations are nothing more than conclusions and are not sufficient to support a cause ofaction in negligence.

No details have been provided to identify the “Defendants’ officials,” to explain their roles and responsibilities inrelation to the Plaintiffs, or to establish their connection to any of the parties. Similarly, the Claim is silent as to the “Defendants’officials” particular acts or omissions that the Plaintiffs’ claim were negligent and no facts are included to support the specific “common-law, statutory and constitutional duties” that were allegedly breached.

It seems to me that the general requirements for establishingliability in tort have not been met and it would be impossible to conduct the necessary analysis to determine whether liability could beestablished. As the Defendants point out, this is particularly difficult where the defendant is a government actor. Issues arise as towhether public law discretionary powers establish private law duties owed to particular individuals or whether the decisions in questionwere policy decisions or operational decisions.

These questions are very complex and detailed factual pleadings are required in order toproperly determine whether a cause of action exists. [my emphasis] [79] In my view, the claim as pled does not disclose a reasonable cause of action; indeed, there is not even a scintilla of a cause ofaction. The pleadings are nothing other than general allegations and conclusions without providing the material facts required or evenwhat the duty of care may be. Bare assertions of conclusions are not allegations of material facts. The Plaintiffs only declare that thereexists some duty of care.

The Court in Sivak, relying on Kisikawpimootewin v Canada, 2004 FC 1426 [Kisikawpimootewin] and Murrayv Canada (1978), 21 NR 230 (FCA) found that “a claim that does not sufficiently reveal the facts upon which a cause of action is based,such that it is not possible for the defendant to answer or the Court to regulate the action, is a vexatious action” (para 30). The Plaintiffshave asserted the claim as an alternative. In so doing, they have failed to provide any material fact relevant to a negligence claim thatcould support what is at any rate a vague claim based on bald assertions and conclusions.

[ 80 ] The tort of negligent investigation requires the Plaintiffs to plead facts pertaining to the conduct of the investigation into the inadmissibility finding to make out a reasonable cause of action ( Hill v Hamilton-Wentworth Regional Police Services Board , 2007 SCC 41 at para 68 ). The Defendant argues that “[i]n the few cases where the standard of care has been held to have been breached, the conduct of investigators has involved egregious and overzealous behaviour” (at para 45 of the Defendant’s written representations).

Examples of such conduct include “ignoring exculpatory or other material evidence” and “making decisions based primarily on assumptions or stereotypes” ( Safa Almalki v Canada , 2012 ONSC 3023 at para 17 ).

There is nothing of the sort that is even alleged by the Plaintiffs in this lawsuit. [ 81 ] The Supreme Court also noted in Woodhouse that citizens are not entitled to a certain level of thoroughness in an investigation, nor are they entitled to a certain outcome: 40 … Individual citizens might desire a thorough investigation, or even that the investigation result in a certain outcome, but they are not entitled to compensation in the absence of a thorough investigation or if the desired outcome fails to materialize… [ 82 ] The statement of claim recounts only the principal Plaintiff’s 15-minute interview where he was asked about Al Qaeda and states that the officer refused to explain the reason for the question; it pleads that these allegations have no basis: 24.

On January 13 th , 2014 the Plaintiff, Emad Al Omani was called in for a very brief interview with respect to his application re- determination. 25. On March 17 th , 2014 the Plaintiff was, Emad Al Omani was sent a second negative decision, which stated and concluded, without any reasons whatsoever, that; “In particular, there are reasonable grounds to believe that you are a member of the inadmissible class of persons described in 34(1)(

f) of the Immigration and Refugee Protection Act .” […] 26. The Plaintiff, Emad Al Omani, advises that at no time was he either: (

a) given notice of these outrageous and untrue conclusions and allegations; nor (

b) shown any evidence nor any information, to address these false allegations and conclusions. During the interview, the Plaintiff was asked an unfocused, nebulous, and non-contextual question about Al Qaeda. In fact, during the fifteen (15) minute interview, the Plaintiff, Emad Al Omani, was only asked two questions, namely: (

a) to explain the change in his job description […] (

b) the officer asked the Plaintiff if the Plaintiff belonged to, or was in any way associated with “any group or organization like Al Qaeda in Iraq”, to which the Plaintiff categorically replied that he did not belong to, nor associated with such groups as Al Qaeda, nor Al Qaeda itself. The Plaintiff then asked the officer to be more specific with respect to why he would even ask such a question, but the immigration officer refused, citing “secrecy” barring him from divulging any Canadian government information. 27.

The earlier application, which had been denied, had no such allegations nor conclusions for denial. It was denied based on the fact that some documents relating to Emad Al Omani, were missing, and a miscalculation and blatant error(

s) in applying the selection criteria, for which it was sent back for reconsideration by Federal Court order. [ 83 ] Apart from these statements, no material facts are given. There is nothing on the conduct of the investigation that led to the inadmissibility finding. I agree with the Defendant that the statement of claim fails to plead facts, let alone sufficient material facts to establish the tort of negligent investigation other than suggesting that the Plaintiffs are unhappy with the conclusion reached that they are inadmissible.

The pleadings do not even begin to give any indication to support a general allegation that the investigation may have been negligent. I see no scintilla of an argument and am striking this claim without leave to amend. There is not even the faintest allegation of the who, when, where, how and what giving rise to liability. It is plain and obvious that the claim cannot succeed. The Plaintiffs throw up in the air an accusation with nothing to support it. There is nothing to amend.

Actually, the Plaintiffs did not even attempt to specify how the claim could be amended ( Ward v Canada (Public Safety and Emergency Preparedness) , 2014 FC 568 , para 30 ). The fact of the matter is that there is no cause of action given the material facts pleaded. It is not so much that there are deficiencies which may be cured by amendment. There is no cause of action pleaded. Claim 5: Conspiracy [ 84 ] In what appears to be the further alternative, the Plaintiffs allege that the Defendant is engaged in a conspiracy at paragraph 37 of their statement of claim: 37.

The Plaintiffs further state that the Defendant’s officials have: (a) (

i) engaged, and are engaging in a conspiracy, through their conduct and communications, to deny the Plaintiff’s statutory, constitutional, as well as international treaty rights, to deny their permanent residence under Canadian law, as well as a fair and impartial assessment of their application, a conspiracy as outlined, inter alia , by the Supreme Court of Canada in the test set out in Hunt v. Carey and jurisprudence cited therein, namely to; A/ engage in an agreement for the use of lawful and unlawful means, and conduct, the predominant purpose of which is to cause injury to the Plaintiff; and/or

B/ to engage, in an agreement, to use unlawful means and conduct, whose predominant purpose and conduct directed at the Plaintiff, is tocause injury to the Plaintiff, or the Defendants’ officials should know, in the circumstances, that injury to the Plaintiff, is likely to, anddoes result; The details and particulars of which conspiracy(ies) are as follows: (

b) that the first denial was a contrived denial made in bad faith, and absence of good faith, entirely designed and engineered to deny,contrary to law, the Plaintiffs’ application; (

c) that the inordinate, inexcusable, and castigating delay between the 1st judicial review determination, and second denial, as well as the inordinate, inexcusable and castigating delay since the 2nd judicial review, to the present, are all designed to stone-wall and deny thePlaintiffs’ procedural and substantive rights to have their applications possessed [sic]; (

d) that the baseless, false, and wholly contrived allegations of inadmissibility for association with Al Qaeda, or such groups, have beendesigned and engineered to simply deny the Plaintiffs their procedural and substantive right to have their application(

s) processed underthe IRPA. The Plaintiffs state that all known (and unknown) officers to the Plaintiffs involved in the investigation, processing, and denial of thePlaintiffs’ application have conspired with the goal of denying the Plaintiffs, by any and all means necessary, and therefore liable inconspiracy as set out by the Supreme Court of Canada, in Hunt v. Carey as follows [repeats test as set out above]. 38.

The Plaintiff states, and the fact is, that as a direct result of the Defendant’s officials illegal actions, and tortious conduct, thePlaintiffs have, and will, suffer damages which he claims as set out the within statement of claim. [85] As the Plaintiffs outlined, Hunt explains that the tort of conspiracy can be established on two grounds: (

i) the plaintiff canclaim a conspiracy to injure in that two or more people work together in agreement using lawful or unlawful means for the predominantpurpose of injuring the plaintiff, who is in fact injured; or (ii) the plaintiff can claim a conspiracy of unlawful acts where two or morepeople work together in agreement to engage in unlawful conduct directed toward the plaintiff that they ought to know is likely to causeinjury to said plaintiff, who is in fact injured. [86] The Defendant referred to Normart Management Ltd v West Hill Redevelopment Co Ltd, (1998), (ON CA),37 OR (3d) 97 (ONCA), for a list of the elements that need to be pleaded to establish a cause of action in conspiracy.

The Ontario Courtof Appeal writes at paragraph 21: [21] In H.A. Imports of Canada Ltd. v. General Mills Inc. (1983), (ON SC), 42 O.R. (2d) 645, 150 D.L.R. (3d) 574(H.C.J.), O'Brien J., dealing with the civil action of conspiracy as pleaded, quoted from Bullen, Leake and Jacob's Precedents ofPleadings, 12th ed. (London: Sweet & Maxwell, 1975), as follows at pp. 646-47: The statement of claim should describe who the several parties are and their relationship with each other.

It should allege the agreementbetween the defendants to conspire, and state precisely what the purpose or what were the objects of the alleged conspiracy, and it mustthen proceed to set forth, with clarity and precision, the overt acts which are alleged to have been done by each of the allegedconspirators in pursuance and in furtherance of the conspiracy; and lastly, it must allege the injury and damage occasioned to the plaintiffthereby. [87] The statement of claim under review speaks of denials to grant permanent residence based on flimsy reasons followed by longperiods without any action on the part of the government; however it identifies those involved in the alleged grand conspiracy as “allknown (and unknown) officers to the Plaintiffs involved in the investigation, processing, and denial of the Plaintiffs’ application” (atpara 37).

This obviously does not constitute an identification by name. It is not either by group or job positions. The Plaintiffs identifyofficers based on their allegation that those who dealt with the matter, given that permanent residence was denied, have conspiredtogether. The statement of claim does not describe the alleged conspirators’ relationship with each other apart from implying that they arethose who worked on the Plaintiffs’ application at some point.

It is as if the Plaintiffs seek to derive some conspiracy against them basedon two denials and the periods of time between events. [88] The statement of claim fails to describe the agreement(

s) between the alleged conspirators. It pleads their alleged overallapproach—denying the processing of the Plaintiffs’ permanent residence application “by any and all means necessary”—but does notplead material facts precisely describing the purpose of the agreement between the known and unknown officers. It is fine to have aconspiracy theory, but it must be spelled out.

Crying “conspiracy” is not enough to disclose a reasonable cause of action. [89] Reading the pleadings as generously as can be, there is no way to decipher what the agreement may be, who the conspiratorsare, whether the alleged conspiracy has the predominant purpose to injure the Plaintiffs, as opposed to pursuing some other purpose,whether the alleged conspiracy is to use lawful or unlawful means.

In other words, we are left with a bald and bold allegation withouteven attempting to define the essential elements of the tort alleged, and obviously, offering any fact, material or not, to substantiate anallegation. [90] Instead of identifying the branch of the tort of conspiracy the Plaintiffs wish to rely on in order to state material facts on whichthey actually rely, they make a completely generic assertion, without more. There is not even anything about how there can be aconspiracy, as opposed to, for instance mere knowledge or approval of a cause of conduct.

Proof of agreement and execution is required.Nothing of the sort is alleged with material facts in support. [91] All that is known is that the Plaintiffs were denied permanent residence twice. The pleadings, in my view, amount to acomplete absence of definition of the tort and its elements. It is plain and obvious that there is no reasonable cause of action. It is as ifthe Plaintiffs were suggesting that, given they were denied twice and there were delays, there must be somehow a conspiracy.

It is notpleading conspiracy to merely allege these facts and, without more, suggest an agreement the purpose of which is unknown. Put a

different way, the Plaintiffs seem to allege their experience with immigration authorities is such that there must be some conspiracyhatched somewhere. [92] The pleadings are also so deficient in factual material that the Defendant would be incapable to know how to answer.

They arebare assertions that are unfounded; not only they do not disclose a reasonable cause of action they could be struck as frivolous orvexatious (Senechal v Muskoka (District Municipality), [2003] OJ No 885; Kisikawpimootewin supra). [93] In terms of overt acts, which would tend to show that some agreement to work together exists and could be opposed to the co-conspirators, the statement of claim simply references the first visa denial, the delay between the first judicial review and the second visadenial, the delay since the second judicial review, and the inadmissibility allegations.

There is no trace of any agreement, just somediscrete events. The Plaintiffs pleaded a series of independent events, and did not present anything tending to show that the conspiratorsagreed to undertake these acts to further the conspiracy; rather, they rely on their overarching statement that the Defendant aimed to denythe Plaintiffs’ application processing, without more. [94] The nature of a conspiracy requires that there be participants, some known and others unknown, who agree to do somethingthat will cause injury (Cement LaFarge v B.C. Lightweight Aggregate, (SCC), [1983] 1 SCR 452).

Here, the materialfacts allowing to conclude to some agreement are absent. The date, the object and the purpose of an agreement between unknownparticipants is not even pled. No overt act by the participants in furtherance of the conspiracy is offered in the pleadings. These are baldallegations involving undefined persons without even a hint of the agreement which is central to a claim of conspiracy. As found in Sivakat para 55, this constitutes a pleading that is vexatious (see also Kisikawpimootewin). It is not possible, on the basis of these pleadings,for the D

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